BILL ANALYSIS �
AB 1648
Page 1
ASSEMBLY THIRD READING
AB 1648 (Brownley)
As Amended May 17, 2012
2/3 vote
ELECTIONS 4-2 APPROPRIATIONS 11-5
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|Ayes:|Fong, Bonilla, Allen, |Ayes:|Fuentes, Blumenfield, |
| |Swanson | |Bradford, Campos, Davis, |
| | | |Gatto, Ammiano, Hill, |
| | | |Lara, Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Donnelly, Logue |Nays:|Harkey, Donnelly, |
| | | |Nielsen, Norby, Wagner |
| | | | |
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SUMMARY : Makes significant changes to required disclosures on
campaign advertisements and slate mailers. Specifically, this
bill :
1)Requires, in general, advertisements supporting or opposing a
candidate or ballot measure via radio, television, video,
print, or mass mailing, to include the following:
a) If the advertisement is made via radio, television, or
video, and is authorized by a candidate or an agent of the
candidate, a statement in which the candidate identifies
himself or herself and states that the candidate has
approved the message; or,
b) If the advertisement is not authorized by a candidate or
agent of a candidate, a disclosure statement that
identifies the top three contributors of $10,000 or more to
the committee funding the advertisement, based on
"cumulative contributions," as defined. Requires that this
disclosure statement include the logos, if any, of the top
three contributors if the advertisement is made via
television, video, print, or mass mailing.
2)Requires a committee paying for an advertisement that is not
authorized by a candidate or agent of a candidate, and that is
subject to the disclosure requirements listed above, to
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establish and maintain a committee disclosure Internet Web
site, on which the top five contributors of $10,000 or more to
the committee are disclosed, along with either a link to the
committee's campaign filings on the Secretary of State's Web
site or a link to another page on the same Web site that lists
all contributors of $10,000 or more to the committee.
3)Establishes specific size, font, color, and duration
requirements for the disclosure statements required by this
bill.
4)Requires a slate mailer to include an asterisk (*) next to
each candidate and ballot measure for which payment has been
made for inclusion in the slate mailer.
5)Repeals existing, conflicting disclosure requirements for
campaign advertisements.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, the Fair Political Practices Commission (FPPC) will
incur annual General Fund costs of around $200,000, for the
equivalent of two positions, associated with the initial writing
of new regulations and re-writing campaign materials and
increased ongoing costs to provide advice and for investigation
and enforcement. The commission believes it is likely to incur
significant costs (exceeding $300,000) from litigation related
to the constitutionality of some of the bill's provisions.
COMMENTS : According to the author, "Campaign spending has
reached unprecedented levels in recent years. Over $200 million
was spent on ballot measures alone during the November 2010
election in California, and even greater amounts of spending are
expected for this upcoming election cycle. Although there are
limits on the amount of direct contributions candidates can
receive, funders can make unlimited contributions to?independent
expenditure committees and to ballot measure committees that
have significantly shaped the way California is governed.
Furthermore, many of these committees are purposely established
to disguise who exactly is funding the campaign messages that
voters see and hear?AB 1148 will help cast light on spending in
elections by requiring the disclosure of top funding sources
directly on all mediums of political advertisements, and
requiring campaign committees to maintain a website with a list
of its largest funders so voters are able to easily access this
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important information at all times. At a time when public
confidence in its elected officials is unequivocally low,
strengthening disclosure requirements on political
advertisements is necessary to help Californians be better
informed and feel more represented by their government."
This measure could be interpreted as a violation of the United
States and California Constitutions' guarantees to free speech.
While the right to freedom of speech is not absolute, when a law
burdens core political speech, the restrictions on speech
generally must be "narrowly tailored to serve an overriding
state interest," McIntyre v. Ohio Elections Commission (1995),
514 U.S. 334.
In McIntyre, the United States Supreme Court struck down an Ohio
law that prohibited the distribution of campaign literature that
did not contain the name and address of the person or campaign
official issuing the literature, finding that the law
unconstitutionally restricted the freedom of speech in violation
of the First Amendment to the United States Constitution. In
the case, the State of Ohio argued that the law should have been
upheld in recognition of two important state
interests-preventing fraudulent and libelous statements, and
providing the electorate with relevant information. The Court
found that neither interest was sufficient to justify the
restrictions that the Ohio law imposed on the freedom of
expression.
With respect to the interest in preventing fraudulent and
libelous statements, the Court noted that Ohio already had
prohibitions against making or disseminating false statements
during political campaigns, and as such, "Ohio's prohibition of
anonymous leaflets plainly is not its principal weapon against
fraud." The second state interest offered by Ohio was the
interest of "providing the electorate with relevant information"
- an interest that is similar to the author's stated reason for
seeking to require disclosure on advertisements as required by
this bill. Here too, however, the McIntyre court found that
such an interest was not sufficient to justify the restrictions
that the Ohio statute placed on freedom of speech and
expression, stating that "�i]nsofar as the interest in informing
the electorate means nothing more than the provision of
additional information that may either buttress or undermine the
argument in a document, we think the identity of the speaker is
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no different from other components of the document's content
that the author is free to include or exclude. . . . The simple
interest in providing voters with additional relevant
information does not justify a state requirement that a writer
make statements or disclosures she would otherwise omit."
The McIntyre court made an important distinction between a
requirement that a person file a report with a government agency
to disclose money expended for a campaign advertisement and a
requirement that a person must disclose his or her identity on
the advertisement itself, noting that while requiring a report
to be filed with a government agency "undeniably impedes
protected First Amendment activity, the intrusion is a far cry
from compelled self-identification on all election-related
writings."
Supporters of this bill argue that, notwithstanding the McIntyre
case and other cases that are discussed in detail in the policy
committee analysis, the provisions of this bill nonetheless are
constitutional, particularly in light of disclosure requirements
that were upheld by the United States Supreme Court in Citizens
United v. Federal Election Commission (2010), 130 S.Ct. 876.
While Citizens United is probably best known as the case in
which the United States Supreme Court struck down a 63 year old
law that prohibited corporations and unions from using general
treasury funds to make independent expenditures in federal
elections, in the same case, the Court also upheld certain
disclaimer and disclosure provisions of the federal Bipartisan
Campaign Reform Act of 2002, also sometimes called
"McCain-Feingold" for its Senate authors.
While some of the requirements of this bill are comparable to
provisions of federal law that were at issue in Citizens United,
other requirements in this bill go beyond what was considered by
the court. Specifically, the provisions of this bill that
require the identities of certain campaign contributors-entities
that were not responsible for the content or the production of
the advertising-to be included in campaign advertising go beyond
what was upheld in the Citizens United case. In light of that
fact, while the court in Citizens United did uphold certain
disclaimer requirements, it is unclear whether the broader
requirements in this bill would similarly be upheld against a
constitutional challenge on the grounds that those requirements
violate the First Amendment. It is also possible, however, that
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the disclaimers and disclosures that are required under existing
state law could be susceptible to challenge as well on the same
grounds.
California voters passed an initiative, Proposition 9, in 1974
that created the FPPC and codified significant restrictions and
prohibitions on candidates, officeholders and lobbyists. That
initiative is commonly known as the Political Reform Act (PRA).
Most amendments to the PRA that are not submitted to the voters,
including those contained in this bill, must further the
purposes of the initiative and require a two-thirds vote of both
houses of the Legislature.
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
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